For affirmance -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall, Mountain and Sullivan and Judge Conford. For reversal -- None. The opinion of the Court was delivered by Jacobs, J.
[63 NJ Page 201] The defendant was found by the Burlington County Court to be a disorderly person for having possessed small quantities of marihuana and hashish in violation of N.J.S.A. 24:21-20(a)(3). He received a suspended jail term of three months and was placed on probation for a year with direction that he pay a fine of $250 in installments through the probation department. He appealed to the Appellate Division and that court reversed, in an unreported opinion which concluded that the County Court "was without jurisdiction to try the defendant as a disorderly person and that the guilty finding and sentence thereafter imposed were illegal under the case of State v. McGrath, 17 N.J. 41 (1954)." We granted certification (62 N.J. 260 (1973)) for the purpose of passing on whether McGrath, which has long been the subject of question, should not now be replaced by a more suitable judicial approach. See Knowlton, "Criminal Law and Procedure," 10 Rutgers L. Rev. 97, 98-99 (1955); State Bar Committee Report, Criminal Law, 77 N.J.L.J. 408 (1954); Proposed New Jersey Penal Code Vol. I: Report and Penal Code, pp. 7-8;
Vol. II: Commentary, pp. 24-26 (1971); cf. State v. Currie, 41 N.J. 531, 546-547 (1964).
During the night of August 9, 1971 two State Troopers, while on patrol in Wrightstown, saw a yellow Ford van in an area known to be a hangout for narcotics users. They saw the defendant and Stanley Wesley standing next to an open door on the right side of the van. Its owner and driver, Larry Pesacreta, was in the van occupying the driver's seat. Apparently the defendant and Wesley saw the troopers and they walked hurriedly away. One of the troopers went after them while the other trooper observed a brown paper bag being thrown from the van by Pesacreta. The bag was retrieved and it was found to contain a total of 73.95 grams of marihuana and 18.44 grams of hashish. The trooper who went after the defendant and Wesley apprehended them and both were searched. Wesley had no narcotics on his person but the defendant had 2.89 grams of marihuana and .49 grams of hashish. N.J.S.A. 24:21-20(a)(3) provides that one who violates its terms by possession of more than 25 grams of marihuana or more than 5 grams of hashish "is guilty of a high misdemeanor" and that one who violates by possession of 25 grams or less of marihuana or 5 grams or less of hashish "is a disorderly person."
The State proceeded on the theory that the marihuana and hashish in the bag thrown from the van was jointly possessed by Pesacreta and the defendant Saulnier. They were both named in a single indictment which charged, in count one, that they unlawfully possessed over 25 grams of marihuana and, in count two, that they unlawfully possessed over 5 grams of hashish. On motion, the two counts were consolidated into one count charging possession of the marihuana and hashish. Pesacreta pleaded guilty and the matter came on for trial against the defendant Saulnier who elected to waive a jury and proceed before the trial judge. At the close of the State's testimony, counsel for Saulnier moved to dismiss on the ground that the State had not established
that Saulnier was in joint possession of the narcotics with Pesacreta. The trial judge agreed and dismissed the high misdemeanor charge in the indictment. But instead of terminating the entire proceeding he ruled that he could proceed with trial of the issue of whether the defendant's possession on his person of the 2.89 grams of marihuana and the .49 grams of hashish rendered him a disorderly person under N.J.S.A. 24:21-20(a)(3). Defense counsel objected, urging that the defendant was never "on notice" that he was being charged as a disorderly person for the possession of the small quantities of narcotics allegedly found on his person; defense counsel also urged that under McGrath, supra, 17 N.J. 41, the trial judge could not convict the defendant of disorderly conduct as "a lesser included offense." These contentions were rejected and the defense then proceeded with its testimony which included a specific denial by the defendant that he possessed marihuana or hashish on his person as testified to by the trooper. The trial judge found the trooper's testimony to be credible and, as aforestated, found the defendant to be a disorderly person.
State v. Maier, 13 N.J. 235 (1953), held that our statute (N.J.S.A. 2A:170-26) declaring that one who commits a simple assault or assault and battery shall be a disorderly person rather than a misdemeanant is constitutional; accordingly a disorderly person complaint for simple assault and battery, filed against the defendant in the Municipal Court of Hoboken, was upheld for trial there. It was followed by State v. McGrath, supra, 17 N.J. 41 (see also State v. Chiarello, 17 N.J. 36 (1954)) where an indictment charging atrocious assault and battery, in one count, and simple assault and battery, in another count, was returned by the Hudson County Grand Jury and came on for trial in the Hudson County Court. The defendant waived trial by jury and the County Judge found him not guilty of atrocious assault and battery but guilty of simple
assault and battery. On appeal, this Court held that "the County Court was without jurisdiction" of the simple assault and battery charge and that consequently the defendant's conviction must be set aside. 17 N.J. at 53.
In support of its holding, the Court expressed the view that the Legislature, in downgrading simple assault and battery, contemplated that grand juries and upper courts would not be burdened with petty offenses (17 N.J. at 45) and that trial juries would not be subject to the "confusion" of having to pass on simple assaults and batteries, as lesser and included offenses, where the indictments charged atrocious assaults and batteries. (17 N.J. at 45-46). It additionally noted that a defendant charged with atrocious assault and battery could not be convicted of simple assault and battery in the County Court because that court "lacks jurisdiction" over a disorderly person offense which is not viewed in law as a crime. 17 N.J. at 52. Shortly after McGrath was handed down, it was questioned by Professor Knowlton who pointed out that "jurors in many types of criminal cases must be instructed concerning lesser and included crimes" and that it was "highly unlikely that the jury's confusion would be accentuated by the fact that one is a crime and the other is not." 10 Rutgers L. Rev. at 98. He expressed the thought that McGrath might lead prosecutors to avoid seeking atrocious assault indictments except in "the most obvious cases" and that this might well disserve the public interest; and he expressed the further thought that it might operate unfairly to defendants who, though they may be acquitted of atrocious assault charges on the basis of credited evidence indicating innocence of both simple and atrocious assault, may nonetheless still be required under McGrath to face independent disorderly persons charges on the basis of the identical occurrences. Knowlton, supra, 10 Rutgers L. Rev. at 99; cf. Bigelow, "Former Conviction and Former Acquittal," 11 Rutgers L. Rev. 487, 504 (1957).
The common law doctrine that a defendant may be found guilty of a lesser offense necessarily included in the greater offense charged in the indictment is well recognized in our State. See State v. Zelichowski, 52 N.J. 377, 383-385 (1968); State v. Midgeley, 15 N.J. 574, 579 (1954); State v. Staw, 97 N.J.L. 349, 350 (E. & A. 1922); cf. State v. Newman, 128 N.J.L. 82, 84 (Sup. Ct. 1942); State v. Johnson, 30 N.J.L. 185, 186-187 (Sup. Ct. 1862); see also IV and V Wharton's Criminal Law and Procedure, §§ 1799 and 2131 (1957). It was originally designed to aid the prosecution so that it would not fail entirely where some element of the greater offense was not established. See The People v. White, 22 Wend 167, 176 (1839); The People v. Jackson, 3 Hill 92 (1842). But it also redounded to the benefit of the defense since it enabled a finding of lesser consequence (cf. People v. Mussenden, 308 N.Y. 558, 127 N.Ed 2 d 551, 553 (1955)) and precluded a later independent prosecution of the lesser offense as double jeopardy. See State v. Midgeley, supra, 15 N.J. at 579-580; State ...